New Trial Ordered for OrangeCounty Doctor
Convicted of Molesting Patients

By a MetNews Staff
Writer

A defendant’s right to
silence was violated when the trial judge questioned him in the presence of the
jury at a view of the alleged crime scene—the defendant’s office suite—without
obtaining a waiver, the Fourth District Court of Appeal ruled yesterday in
ordering a new trial for a doctor convicted of molesting three patients.

The court ordered a new
trial for Del B. Dalton of Laguna Niguel, whose medical license was revoked by
the Medical Board of California in September 2000 on the basis of the same
conduct for which he was convicted. The appeals court ruling does not
immediately affect that revocation.

Dalton, a controversial figure
before the accusations came to light because of his public advocacy of
marijuana use for medical purposes, has also been sued for sexual misconduct.

Dalton was convicted of
six misdemeanors—three counts of sexual battery, one count of battery, and two
counts of misrepresenting himself as a board-certified plastic surgeon—and
received a suspended jail sentence along with the immediate suspension of his
medical license following his 1999 trial.

The Orange Superior
Court Appellate Division affirmed his conviction in a 2-1 decision, but the
Court of Appeal said that “substantial irregularities” in the conduct of the
trial by Judge Pamela Lee Iles require reversal.

Justice William
Rylaarsdam, writing for Div. Three, said Iles violated Dalton’s Fifth Amendment right
to freedom from self-incrimination during the visit to his offices, which were
ordered on defense motion. The judge granted the motion after the defense
argued that it would help establish the unlikelihood that Dalton could have done what he
was accused of without others in the suite overhearing.

After eight days of
testimony, Iles convened the court at the defendant’s office.

In the presence of the
jury and prosecutors, the judge asked:

“So do you want me to
swear Dr. Dalton for the purposes of carrying out a guided tour?”

After the defense lawyer
acceded to the request—Dalton was in his personal office at the time,
Rylaarsdam explained—he was summoned to the room where the others were gathered
and the judge, without obtaining a Fifth Amendment waiver, told the clerk to
swear him in.

The doctor then led a
tour of the office, describing the layout and office procedures in narrative
style until the judge interjected that she preferred to “do the questioning”
because it would “be easier.” The judge completed her questioning, then invited
the prosecutor to cross-examine, before asking some further questions of her
own.

After the court
reconvened in the courtroom, the judge told jurors that if they had any other
questions, “you’ll be able to ask that later when [the doctor] takes the stand
at a later time.”

These procedures “committed
defendant” to testify without giving him the option not to do so, Rylaarsdam
wrote, and were “repugnant to the protections offered by the Fifth Amendment.”
A defendant cannot be forced to state in the jury’s presence whether or not he
will testify, the justice said.

The jurist rejected the
contention that the error was harmless beyond a reasonable doubt, and
questioned whether “a judge’s unexpected and direct request in the presence of
the jury for a defendant to testify...could ever be harmless ‘beyond a
reasonable doubt.’”

He also cited what he
called “a representative sample” of other irregular conduct by the judge,
including taking the defendant “by surprise” by asking him to “act as a tour
guide” before he came into the room where the judges and lawyers were, inviting
the prosecutors to cross-examine at the scene, and questioning the defendant on
irrelevancies such as the procedure for storage of drugs on the premises.

The latter questioning
breached the judge’s obligation to “be careful not to become [an advocate] for
either side,” Rylaarsdam said, because their had been a substantial amount of
irrelevant trial testimony about drug usage by various persons, including
defense witnesses.

The justice went on to
reject the argument that there was a Fifth Amendment waiver because the defense
announced at pretrial conference that Dalton would testify.

“An early announcement
that defendant will testify does not create an irrevocable duty to do so;
defendant may later change his mind,” Rylaarsdam explained. “The posture of the
case, whether evidence is admitted or not, and trial tactics may alter the
decision. A pretrial statement such as the one defendant’s lawyers made cannot
be, in and of itself, a waiver of the right not to testify.”

Nor did Dalton’s agreement to conduct
the office tour constitute a waiver, the justice said.

“We recognize that where
a defendant is represented by a lawyer, the court has no duty to admonish the
defendant regarding the privilege against self-incrimination or to take a formal
waiver of that right,” the justice said. “...But here defendant did not take
the stand at the request of his lawyer; the invitation came from the court.”

Counsel’s acquiescence
to such a request in the presence of the jury, Rylaarsdam explained, does not
constitute a waiver since an objection in that circumstance would likely have
caused the jury to draw improper inferences. Besides, the justice concluded, if
there was a waiver with respect to the manner in which the tour was conducted,
it did not extend to the subsequent improper questioning.